Citation Nr: 1604485
Decision Date: 02/08/16 Archive Date: 02/18/16
DOCKET NO. 11-18 631A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to September 17, 2013.
2. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 17, 2013.
REPRESENTATION
Appellant represented by: Christopher Loiacono, Agent
ATTORNEY FOR THE BOARD
Kate Sosna, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1969 to November 1973.
This appeal comes before the Board of Veterans' Appeals (Board) from October 2013 (PTSD) and April 2014 (TDIU) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
By way of background, the Board notes that the October 2013 rating decision granted service connection for PTSD and assigned a 30 percent rating effective July 13, 2010, and a 70 percent rating effective September 17, 2013. Thereafter, in an August 2014 rating decision, the RO found clear and unmistakable error in the October 2013 rating decision and assigned a 30 percent rating effective May 15, 2009.
Regarding the period on appeal for the PTSD claim, the Board notes that in his September 2014 substantive appeal, the Veteran specifically limited his disagreement with the rating assigned prior to September 17, 2013; an appeal for the period from September 17, 2013, was not perfected.
In his substantive appeals, the Veteran requested a hearing before a Veterans Law Judge of the Board. A Board hearing was scheduled for August 2015, but the Veteran subsequently cancelled his hearing. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2015).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
While receiving treatment at the VA medical center for PTSD prior to September 2013, the Veteran repeatedly reported receiving treatment at a local Vet Center. It does not appear that records from the Vet Center have been associated with the claims file. Such records appear relevant (especially in light of the fact that the Veteran was not provided an examination for his PTSD prior to September 17, 2013) and should be requested.
The claim for a TDIU prior to September 17, 2013, is inextricably intertwined with the increased rating claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc).
Accordingly, the case is REMANDED for the following action:
1. Request treatment records dating from May 2009 to September 2013 from the Vet Center. If additional information is needed from the Veteran to request such records, the Veteran should be asked to provide such. If any requested records are not available, the Veteran should be notified of such.
2. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).